Running head: FIRST AMENDMENT REACTION PAPER 1

First Amendment Reaction Paper

Stephanie Swigart

Wright State University

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We live in a free country. But what does it actually mean to live in the land of the free?

In order to answer this question, one must inevitably look to the seminal document on which our

country was founded; the United States Constitution. More specifically, one must look to the Bill

of Rights. These first ten amendments to the Constitution were ratified in 1791 and hold just as

much importance today than ever. That, however, does not mean that these freedoms do not

come without their fair share of controversy. The First Amendment is a great example of this.

This paper seeks to explore the challenges surrounding First Amendment issues as they relate to

the higher education landscape, especially that of a public, four-year institution. Forum analysis,

unprotected speech, and the importance of having a plan of action will all be discussed through

the Student Affairs lens.

At first glance, one might view the First Amendment as being pretty straightforward:

Congress shall make no law respecting an establishment of religion, or

prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or of

the right of the people peaceable to assemble, and to petition the Government for

a redress of grievances. (U.S.Const.amend.I)

ImustadmitthatpriortostartingtheStudentAffairsinHigherEducationprogram,Iwouldhave

probablydescribeditinasimilarway.However,afterlearningandreadingabouttheissuesthat

canariseregardingtheFirstAmendment,Iamnowstartingtounderstandtheamazing

complexitythattheserightscanentail.Iwasevenabletoseeanexampleofthisfirsthandin

Aprilof2015whentherewasmajorcontroversysurroundingdemonstratorsstandingonthe

AmericanflagatWrightStateUniversity.Thetensionthatarosefromthiswasonlyexacerbated

bythefactthattheuniversityhasalargeveteranstudentpopulationandislocatedrightnextto

theAirForcebase.Emotionscertainlyranhighandjustbeingoncampusandseeinghowmany
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movingpartstheadministrationhadtocontendwithduringthistimereallyopenedmyeyesto

theimportanceofunderstandingtheFirstAmendmentwellasaStudentAffairsProfessional.
ItissoimportantthattheNationalAssociationofStudentPersonnelAdministrators

(NASPA)publishedabookentitledThe First Amendment on Campus: A Handbook for College

and University Administrators. I found this book to be incredibly informative and would

recommend it to anyone who would like to learn more about the First Amendment in general, not

just those in higher education. I thought that the campus scenarios provided in the book did an

excellent job of illustrating how these issues might materialize on a college campus.

Furthermore, an overview of relevant court cases makes this book an absolute Student Affairs

staple in my opinion.
One important element that higher education administrators should understand is the idea

of forum analysis. In discussing guidelines related to threshold analysis, Bird, Mackin, &

Schuster (2006) identify forum analysis as the the third and final step following identifying First

Amendment issues and identifying exceptions to First Amendment protection. The U.S. Supreme

court identifies four different types of forums which are traditional public forums, designated

public forums, limited public forums, and nonpublic forums. Each type of forum allows for

varying degrees of possible regulation with traditional public forums and designated public

forums being subject to strict scrutiny standards in the court of law. On the other hand,

reasonable time, place, and manner regulations are most easily applied to limited public

forums and nonpublic forums.

In reading about public forum analysis, it became incredibly apparent how important it is

for professionals working at a public four-year institution to understand these different types of

forums and to be able to identify areas of each on their own respective campuses. Knowing

exactly which areas are which can allow administrators to make informed decisions regarding

policy and also helps to cover their bases legally speaking. In relating this topic to my own
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experiences, I could not help but to think of the quad gods that frequent our campus. As an

undergrad, I remember hearing so many students complain about these often rude and outspoken

visitors. Why cant they just make them leave? was a common question that would come up in

discussion. Being well-informed of the different forums in conjunction with university policy

would allow student affairs professionals to answer these students legitimate concerns as well as

possibly opening up important dialogue concerning freedom of speech.

Yet another important aspect of the issues raised in The First Amendment on

Campus: A Handbook for College and University Administrators was unprotected speech. This

concept pertains to step two of the threshold analysis mentioned earlier. In an overview of

expressions that may not be covered under the First Amendment by Bird, Mackin, & Schuster

(2006) include sexual harassment, racial harassment, obscenity, fighting words, incitement of

lawless of imminent lawless action, true threat, defamation and internet defamation (p. 66-69).

On multiple occasions, the editors also stress how important it is that administrators consult with

legal counsel throughout the process of dealing with a First Amendment incident or attempting to

regulate any form of protected expression in any way.

In reading the scenarios, I was quite surprised how some of the expressions were

not considered unprotected speech. This is because there needs to be enough substantial evidence

for the courts to find that the exception clearly applies (Bird, Mackin, & Schuster, 2006). In the

hate solicitation scenario, I was shocked that the flyer promoting violence against African

Americans would most likely be considered permissible because it is not producing imminent

action and would therefore not pass the Brandenburg Test. When reading through these

scenarios, it is easy to see how emotionally charged and tumultuous these instances can become.

Public, four year institutions often include some aspect of diversity, acceptance, and inclusion in
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their mission statements. When such a hateful and offensive message is spread, it really shows

the overarching theme of Freedom of Speech versus maintaining civility. But as asserted by Bird,

Mackin, & Schuster (2006), when there is a perceived conflict, educators and administrators at

public institutions of higher education should be the first to recognize and protect the First

Amendment, even when such actions can invite additional campus conflict as well as litigation

(p.5). A third aspect that was brought up in the book was how the creation and

implementation of a solid plan of action can help to alleviate some of the chaos and help to foster

growth and learning from the situation. I thought that the book did a fantastic job at highlighting

all of the different considerations and approaches that an administration should look at when

facing a free speech incident. It is incredibly important that there be a unified message and that

there is a swift response because the media will most certainly be quick to get involved in the

situation. Going back to the flag demonstrations on Wright States campus, there was a lot of

conflicting information going around in regards to what exactly was happening. There were also

many different ideas of how the administration should respond. Various stakeholders became

involved and the use of social media played a large role in how quickly the information was

spread. Thankfully, no one was hurt during the demonstrations. I thought that the

communications department did a great job on social media addressing the concerns that were

brought up during this time. This included informing the public that although it is offensive, the

protestors had a right to desecrate the flag under the First Amendment.

As I continue on in the Student Affairs profession, it is inevitable

that I will encounter more instances of First Amendment issues. There is no doubt that being

more familiar with forum analysis, how to differentiate between protected and non-protect

speech, and effective action planning will serve me well in the future. However, as mentioned
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earlier, First Amendment issues are anything but straightforward. While I now feel as though I

have a good base understanding, it is apparent that I have a lot more to learn and consider when

it comes to this very complex and important issue.

References
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Bird, L. E., Mackin, M. B., & Schuster, S. K. (2006). The First Amendment on campus: A

handbook for college and university administrators. Washington, D.C.: NASPA.

U.S. Const. amend. I.